Fishburn v. Burlington & Northwestern Railway Co.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWEAVER, J.
Citation103 N.W. 481,127 Iowa 483
Decision Date09 May 1905

103 N.W. 481

127 Iowa 483

MARION FISHBURN, by his next friend, Appellee,


Supreme Court of Iowa, Des Moines

May 9, 1905

Appeal from Washington District Court.--HON. W. G. CLEMENTS, Judge.

ACTION to recover damages for personal injury. Judgment for plaintiff, and defendants appeal.


C. J. Wilson and H. & W. Scofield, for appellants.

H. M. Eicher and S.W. & J. L. Brookhart, for appellee.

WEAVER, J. BISHOP, J. Mr. Justice MCCLAIN, (dissenting).

OPINION [103 N.W. 482]

[127 Iowa 484] WEAVER, J.

At the time of the injury complained of, plaintiff was a child of the age of about six years. He lived with his father upon the residence property owned by the latter, bordering upon the defendant's right of way. This residence lot was inclosed by a fence, and that portion of it adjoining the right of way was used as a garden. By the consent of the father the railway company had for several years (during the winter season, at least) maintained a snow fence within the limits of his inclosure. The boundary fence between the right of way and the garden appears to have been constructed of posts and wire. The snow fence was made of boards, in panels of 14 or 16 feet in length. These panels were set on top of the ground, just inside the garden inclosure, and leaned up against the wire fence. To hold them in place, the ordinary method employed was to fasten the ends of the panels together with wire loops of some kind, and attach the top board or boards in the same manner to the fence posts. The evidence tends to show that a snow fence was thus constructed in the fall of 1899. On April 8, 1900, the plaintiff, with a brother about a year younger than himself, went into the garden to look at some pieplant roots or sprouts near the fence; and while there the wind blew over one or more of the board panels, one of which fell upon the plaintiff, injuring him very severely. The negligence charged against the defendant consists in [127 Iowa 485] its alleged failure to give the panels a sufficient slant to prevent their falling or being blown inward upon the garden, and in fastening them to the standing fence with rotten, defective, and insecure wires or other material. There was evidence tending to sustain the charge that the wire made use of for this purpose was old, rusty, and defective. On the part of the defendant there was evidence tending to show that the fence had been fastened in the preceding November with new, bright, galvanized wire, and that all reasonable precautions had been taken to build the snow fence securely. There was also evidence from which the conclusion might have been reached that earlier in the day of April 8th these children had found the panels blown down, and had themselves lifted them back into position against the wire fence, from which they were again blown down at the time of the accident to plaintiff. The facts thus stated, with such as may be incidentally referred to in the further progress of this opinion, are sufficient to indicate the bearing of the several points presented by the appeal.

I. It is argued that a verdict should have been directed in favor of the defendants. To this we cannot agree. We cannot say, as a matter of law, that no actionable negligence was shown. It was an implied condition of the permission to erect the snow fence on private grounds that it should be constructed with reasonable care to avoid injury to persons rightfully using the premises. Defendants must be held to have known that the premises, and every part thereof, not actually occupied by the fence, would continue to be used by the owner and the members of his family with the same freedom and frequency as if the fence did not exist. That the Fishburn family included several immature children playing about the premises was known to the agents and employes of the defendants, and that these children might rightfully go or be sent to any part of the garden must have been anticipated by them. But even if such knowledge were not shown, the [127 Iowa 486] duty was no less imperative to erect and fasten the fence in such reasonably secure manner as not to menace the safety of any person, child or adult, rightfully being within reach of injury from a falling panel. The case is not one where a person has erected a fence or other structure on his own premises. In such case the owner is not ordinarily required to expend time or care in considering the safety of mere trespassers. Here the plaintiff was not a trespasser. He was where he had a right to be, and where the [103 N.W. 483] defendants were bound to anticipate he might be. The license to build the fence was necessarily a license to erect it with reasonable regard to the safe and proper use of the remainder of the premises. They were bound to know that a panel of boards leaned loosely against a fence was morally sure to be blown down in the first windstorm, and to guard against it by some reasonably efficient method of fastening to the posts or the fence which was utilized for its support. While the method and means actually employed in such fastening is a matter of dispute, there is, as we have already noted, sufficient evidence to support a finding that the wires with which these panels were attached to the line fence were old, rusty, and unfit for this purpose. This conclusion is strengthened by the fact that the panels did blow over--a result which ordinarily would not follow, had they been well fastened to the panels, with new galvanized wire, within a period of four or five months, as claimed by the defendants. It is true, they may have been unfastened or removed without fault on defendants' part, but there is nothing in the testimony to show such a state of facts. It is very clear that the question of defendants' alleged negligence was properly left to the jury.

II. Error is assigned upon the ruling of the trial court in admitting the testimony of witnesses to the effect that for a considerable period after his injury the plaintiff would cry out and weep as if in pain, and would otherwise give manifestations of physical [127 Iowa 487] suffering, and complain from time to time that his broken limb hurt him. Under the frequent holdings of this court, there was no error in refusing to exclude this evidence. While there is a sense in which this class of evidence may be said to partake of hearsay and conclusion, it comes within the well-recognized exception which permits it to be given out of regard to the limitations of human language, which make it impossible to describe in apt terms all the manifestations upon which conclusions as to health, sickness, pain, and suffering are based. Buce v. Eldon, 122 Iowa 92, 97 N.W. 989; Reininghaus v. Association, 116 Iowa 364, 89 N.W. 1113; Goldthorp's Estate, 94 Iowa 336, 62 N.W. 845; Yahn v. Ottumwa, 60 Iowa 429, 15 N.W. 257; Bailey v. Centerville, 108 Iowa 20, 78 N.W. 831; Stone v. Moore, 83 Iowa 186, 49 N.W. 76; Kostelecky v. Scherhart, 99 Iowa 120, 68 N.W. 591; Abbot's Trial Evidence (2d Ed.) 408; Cleveland & C. R. R. v. Carey, 33 Ind.App. 275, 71 N.E. 244; R. Co. v. Schmidt, 163 Ind. 360, 71 N.E. 201; R. Co. v. Shanks, 139 Ala. 489. (37 So. 166). This rule is peculiarly applicable in the case of a child of such tender years as to render simulation and fraud improbable.

III. The court permitted the father of plaintiff to testify that he was a day laborer in a planing mill, and that his earnings were about $ 2 per day. This, it is said, was prejudicial error, in that it tended to excite the sympathy of the jury in favor of the plaintiff, as the child of poverty engaged in a contest with a rich corporation. There seems to be no good ground for this contention. The plaintiff was still too young to have a fixed vocation in life. His damages, if entitled to recover, depended in some degree upon the business or occupation he would have been likely to adopt, had he not been injured, and upon the extent to which his injury impaired his ability or capacity to earn money in such business or occupation. While there is, of course, no certainty that the child would have adopted the vocation of his father, this court has held that the probability of such choice is sufficiently [127 Iowa 488] strong to permit evidence of this nature as an element to be considered in the computation of damages. Walters v. R. R., 41 Iowa 71; Eginoire v. Union Co., 112 Iowa 558, 84 N.W. 758; Fish v. R. R., 96 Iowa 702, 65 N.W. 995. Many other exceptions are urged to rulings upon the admission and exclusion of testimony, which cannot be discussed in detail without unduly extending this opinion; but, after a reading of the entire record, we think no reversible error was committed by the trial court in this respect.

IV. The defendants asked the court to instruct the jury as follows:

If you find from the evidence that prior to the accident the panel of fence which caused the injury to plaintiff had fallen to the ground from some unknown cause, and that the plaintiff, finding it there, with the assistance of a brother raised the same to near its former position, and left it there without fastening, and that later on the same day, while walking near the panel and on the land of their father, from the wind or some other unknown cause that panel fell upon the plaintiff, causing the injuries complained of, or some of them, then plaintiff cannot recover for those injuries, and your verdict should be for the defendants.

This request was overruled. Upon the fact proposition here referred to, the court, upon its own motion, said to the jury:

If you find from the evidence that the plaintiff and his brother, the same day the accident occurred, raised a panel of the snow fence that had fallen, and leaned it against the permanent fence or the other panels of the snow fence, and the same was left by plaintiff...

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